Understanding Your Rights: Legal and Insurance Aspects of Working Through Cancer
Network - Fall 2010
By Lana Maciel
Job security. That’s what often springs to mind for recently diagnosed cancer patients when they consider how their disease might impact their employment status.
They worry, “How will this affect my job? Will I be able to keep it?”
The answer, in most cases, is that you cannot lose your job just because you have cancer.
Under the Americans With Disabilities Act (ADA), you can’t be fired or discriminated against because of a disability. Cancer may be considered as such, on a case-by-case basis. It depends on how your condition or treatment affects you and your ability to work.
The decision to tell an employer you have cancer may be difficult, but if the disease and treatment are severe enough to affect your ability to do the job, such disclosure is necessary to gain the legal protections of the ADA.
Whether the disability is obvious or not, the main ADA protections don’t take effect until the employer is informed of the disability and the fact that a reasonable accommodation is required.
Reasonable accommodations help patients return to ‘new normal’
Under the ADA, patients who return to work have a right to ask for reasonable accommodations from their employers. These may include a change in the physical work environment, having a more flexible work schedule, telecommuting or taking extended leave.
If the employee asks for reasonable accommodations and can still perform the essential job functions, that person is protected. However, the employer will decide which accommodations are most reasonable and how they will be met. For example, if an employee requests something and the employer can find a simpler or less expensive way to make the accommodation, that’s acceptable.
Staying protected through medical leave
Once you’ve returned to work after a cancer diagnosis, you may still need time for treatment or therapy. This may conflict with work schedules, or you may feel too fatigued to work at all.
Fortunately, taking time off for most cancer treatments, regular doctor’s appointments or recovery from illness is unlikely to cost you your job.
The Family and Medical Leave Act (FMLA) protects you.
Under this law, employees and caregivers receive up to 12 weeks of unpaid medical leave each year, with an option to substitute accrued vacation, sick leave or other paid time off. You may use the time to deal with your own serious medical condition or to care for a seriously ill spouse, parent or child.
But the FMLA has eligibility requirements. You must have worked at least one year and a minimum of 1,250 hours, and your employer must have 50 or more employees within 75 miles of your work site.
Exploring federal laws and protections
Because patients need health care coverage during treatment, unemployment is simply not an option for many. Fortunately, there are disability insurance policies that can help cover the costs of doctors’ visits and provide short- and long-term benefits.
If you lose health insurance, there are several options, including the continuation coverage provided by the Consolidated Omnibus Budget Reconciliation Act (COBRA), Health Insurance Premium Payment (HIPP) programs and the Health Insurance Portability and Accountability Act (HIPAA).
Which is right for you?
If you lose group coverage because you lose your job, reduce your hours or enroll in Medicare, COBRA plans allow you to maintain that policy with the same providers and prescription drug coverage. But COBRA is expensive — up to 102 percent of the individual employee rate.
Though not available in all states, HIPP plans help you continue private health coverage while the state pays insurance premiums if you can’t afford them.
And with HIPAA, which guarantees access to health insurance and the ability to carry it over to another job, you’re protected as long as you apply within 63 days of a break in health insurance coverage.
Looking for additional help and resources? The website of the nonprofit Cancer and Careers organization (see Resources tab, above right) is full of practical information for patients, caregivers, employers and health care professionals about career considerations after a cancer diagnosis.
Another resource, from the Texas Young Lawyers Association, is a legal guide available in both English and Spanish. (See Resources tab, above right.)
In the Winter 2011 issue of Network, we’ll wrap up our series on working through cancer with reader response to the stories. E-mail email@example.com to share yours.